California EULA Lawsuit

burgburgburg writes "News.com has this story about a California woman suing Microsoft, Symantec and others, seeking class-action status on behalf of all Californians who've bought software including Norton Antivirus 2002, Norton Systemworks and Windows XP Upgrade. She claims that the companies have devised a scheme to sell software licenses without allowing purchasers to review the license prior to sale. She also claims that people who reject the license cannot return the software to the store. She bases this on her rejecting the EULAs for the software mentioned above, going back to CompUSA and being told she couldn't return them because the boxes were opened."

Comments

Implication?

[DasAlbatross]

So does purchasing the software imply agreement now?

Re:Implication?

[ejaw5]

sometimes just buying hardware implies agreement to software terms. For example toshiba laptops have a sticker on the plastic wrap stating that just by taking the computer out, you've accepted the EULA for ALL software bundled with the computer. I had a time trying to find an 'official' MS EULA, only to find a generalized 'over-encampassing' license devised by Toshiba buried in the stack of the manual, and other junk. (AOL, trial MS Games)

Re:Implication?

[the_2nd_coming]

that is the entire issue...it can not be a contract if it is not reviewable before purchas...and for it to be a legaly binding agreement the user must sign something.....I am sure what will come of this is every copy of software will have licensing that will print out and the user must sign it and give it to the cashier before they are alowed to take it home.

Re:Implication?

[ShavenYak]

I am sure what will come of this is every copy of software will have licensing that will print out and the user must sign it and give it to the cashier before they are alowed to take it home.

If that happened, I wonder if the consumers would:

• a) start looking for software that doesn't have a binding license attached, or
• b) just complain constantly about having to sign for their software

Unfortunately, a look at the average consumer makes me think that b) is the more likely outcome.

Re:Implication?

[jackb_guppy]

I had a hardware store try that on me.

After paying for the items with my credit card and signing the credit card receipt. The "Final" receipt prints out a return policy form, for the customer to sign.

I refused to sign a contract after the fact. The store said, I could not return the items if I do not sign. I laughed and pointed out a forced contract after the fact changed the terms of sale. Since the sale was complete - ask the Credit Card Company - You are holding my property without my consent, forcing me to sign a contract. I picked up my cell phone and started to dial the police. They said that the police would not be of help. I noted that they had my property and I am reporting to the police that I was subject to fraud and thief, and that this clerk and you are responsible parties. Then I will call the Credit Card Company Security Department to report the fraud and thief - your merchant id will be deactivated by this afternoon, and the audit will begin with in the week.

The manager gave me, my products value over 3K, signed receipt noting that I would not be subject to the terms. The next two customers did the same.

A week later the extra contract was not longer printing.

Who is responsible?

[Teckla]

Is it *store* policy that opened software can't be returned? Or do the software makers (Microsoft, Symantec, etc.) insist on it? Or both?

Inquiring minds want to know.

-Teckla

Re:Who is responsible?

[Lxy]

I think you nailed it.. store policy vs. maker policy.

Most stores have a policy. If you open the software for any reason, you can only exchange it. No refunds, no store credit, nada. The article doesn't mention whether she tried to contact the vendors directly. If she were to contact Symantec or Microsoft, and they refused a refund, now you have a case. If the makers don't uphold their end of the EULA, why should the users have to?

Go for it!

[markwelch]

This is definitely a lawsuit with merit: it is simply not proper for stores to sell software, then after the sale make disclosure of highly restrictive license terms that violate public policy (like Microsoft's no-review policy) and then refuse to accept return, insisting that the consumer "accepted" the terms of the UNDISCLOSED agreement by opening the box (which contains the agreement inside the sealed box).

Of course, it's extremely likely that this suit will be promptly settled -- none of the software makers want a EULA case to go forward in California.

On top of that...

[$$$$$exyGal]

If you disagree with the EULA, you can't even sell the software on E-bay. If you try, E-bay will promptly remove your listing. I tried to sell an old unused Windows 95 CD on E-bay, once, and it was removed within 12 hours.

--naked

finally!

[doowy]

Interestingly enough, I dislike silly law suits, but I like this one.

I think this has been in the making for a long time.

These days, software makers are quick to inform you that you have purchased a license for use, nothing more and nothing less.

Now we all know [nearly] nobody actually reads those EULAs, but it is (the manufacturer would have us believe) part of our licensing agreement we've just purchased.

This is a big deal. This woman is absolutley correct - certainly she will not be given a refund after opening the boxes - and she certainly didn't know what she was buying until she opened the boxes.

She might have a case, but if not, she's at least got a really good point.

I've had this same viewpoint for a very long time. I for one am glad to see someone doing something about it.

You can view the EULA before purchase

[bergeron76]

Unless I'm mistaken, you can request a hardcopy of the EULA in a product before you purchase it.

I agree with her lawsuit, however. My Windows Operating System has become a liability for me, since I don't agree to the terms of the Service Pack EULAs (becuase of the whole Windows Media Player fiasco) and since I can't get the security packs in any other way, I'm forced to do without them. Luckily for me, I don't use Internet Explorer or Microsoft Office - considering that the majority of flaws originate there (IMO).

I wish her all the best in this, and hopefully we can get back some of our consumer rights.

Legitimizes EULAs?

[Sloppy]

This case seems to be based on the premise that the EULA terms are binding, and that the user can't just use the software under the terms of copyright, even if they decline the EULA offer after they've already bought the software.

That's a pretty nasty implication, IMHO.

I have nothing against software license agreements, but they shouldn't be legitimized in the context of conventional retail sales. Terms should be negotiated before the sale, as a part of a the sale. Once you've paid your money and received the software, that transaction is over. Any new terms the creator want from the user, should come with consideration for the user. If the creator doesn't like doing business that way, then the convenience of the conventional retail store situation, isn't for them.

If your software is so special and expensive that you need a special contract from your users, then you can afford to meet them.

Under 18 Anyone?

[IcEMaN252]

Up until yesterday I hadn't reached age majority. IANAL, but doesn't that void any contract I signed?

If anyone is a lawyer, what is the ramification of a minor "agreeing" to a EULA? I would think it would void the agreement, like any other contract.

Suing them over the EULA

[TygerFish]

Good on her!

Does she have a website for contributions to her legal fund?

Haha...I had a similar experience...

[symbolic]

I walked into CompUSA to purchase a copy of Visual C++.net, and as I was reading the box cover, it said:

You must accept the enclosed License Agreement before you can use this product. If you do not accept the terms of the License Agreement, you should promptly retrun the product for a refund.

Seeing, this, I thought, "cool, any stupid tricks like the last SP on XP, and I can rid myself of this scourge with no problem." Then, as I finished paying for it in the checkout line, I glanced down at the bottom of the receipt, where it basically said that they do not accept returns on opened software.

Dilemma, dilemma. I then proceeded to ask the checkout clerk what I should do if I didn't agree with the enclosed license. She didn't know, so she fetched someone else. After waiting for a bit, a gentleman showed up, to whom I reiterated my concern. He took me over behind a counter, where he attempted to have me read the license online (on Microsoft's web site), and agree to it in the store before I left with the software. As he was rifling through the various links on the site (unable to find what he was looking for), I told him I really didn't understand what the issue was- the box says I can return it if I do not agree with the license, and that as a Microsoft retailer, I'd think they were bound to this policy. He said they wouldn't honor it because too many people buy software, install it, and then return it. Just then, a third gentleman walked up, at which point he too was apprised of the situation. He suggested that if I wanted to return it, I should return it to Microsoft. At that point, I was pissed, and I told him that perhaps it would just be best if I let them keep it and get my money back.

Later on that day, I attempted to locate another copy locally, but was unable to do so. I then called a CompUSA store at a different location, and after explaining my situation to the Manager on Duty, he gave me an entirely different story: he said that I could return the software if I didn't agree with the license, so long as the seal on the CD wasn't broken. This is what I expected to hear in the first place. I then went back to CompUSA to purchase the software a second time. Funny thing is, as soon as I returned home and opened the box, I discovered that this software wasn't packaged in sealed CD cases like I'd seen before. After reading the license, I decided that it was ok - but I do wonder what would have happened had I decided that I wanted to return it.

All I have to say is this: this little catch-22 makes it very difficult for consumers who want to make sure they're acquiring and using software legally. I hope this class-action lawsuit will put a stop to this mess.

Eh?

[Fnkmaster]

Can somebody point me to some case law that implies that EULAs ARE enforceable under current legislation? I fail to see why we need to sit around worrying about it, since to the best of my ability to see, there isn't the foggiest hint of a legal leg to stand on for purveyors of EULAs. I'm not really aware of any situation where these have been considered contracts. They seem to almost universally fail the standards for contract existance -

1) Intention to create legal relations (huh? When I go to a store an buy a product, I don't intend to create legal relations)

2) Agreement, offer and acceptance (huh? When did I agree to the contract? Oh, after I bought the software and opened up the box. But if I don't accept, that doesn't change the fact that I own the software and can use it as I please, within the bounds of copyright law)

3) Certainty of Terms (well, they are certain, but only after you've already made your purchase) and

4) Consideration - as far as I know, most EULAs provide no consideration - you don't get anything in addition to the rights you would get to use a normal product or copyrighted work (like a book or piece of art) as you see fit, as long as you don't redistribute except as permitted by first sale doctrine, etc.

In short, unless you are in a UCITA state, EULAs are meaningless. Not only are they contracts of adhesion (i.e. non-negotiated and non-negotiable), but they aren't signed, and they fail to meet pretty much all the other standards for what makes a contract a contract.

Re:That is her point

[ckaminski]

But that would be illegal. Unless of course the EULA has no force in law, which is not exactly something *I'm* willing to try and get overturned. If said vendor is willing to offer a complete and total refund if the EULA is not approved of, then that should have no impact on the viability of say EULA.

You can have whatever license you want on your software. Just don't rip me off trying to sell it. Now what I'd *LOVE* to see is mandatory licensing on boxes, like we do with food ingredients. Imagine putting the Windows EULA on the back of the Windows Box, forced to use no smaller than a 1/8 in characters? That ought to make the licenses a little more terse.

-Chris

If there is a will, there is a way....

[bgehman]

I had an experience at Wal-Mart this past Christmas where I bought an educational game for my daughter. I believe it was called JumpStart Kindergarden (or similar). I brought it home, installed it, and watched the piece of junk crash constantly. Of course, the software makers had no patches to fix my problems etc. So, I took it back to Wal-Mart for a refund. They said no refunds on opened boxes, but, they did let me switch it for a brand new copy (unopened) which I dutifully took to another wal-mart and got a refund with.